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essentially new and statutory; in such cases the right and remedy remain unseparated and unaltered. But where the titles merely provide for proceedings preliminary to an action, or establish certain principles of law or rules of evidence, to govern suits between certain parties, under certain circumstances, without materially affecting the form of the action or manner of conducting it in other respects, there the proceedings are retained and applied to the new system, and the action, not depending upon the old statute, is to be conducted in conformity with the code. In the latter class may be placed the statutes in relation to suits by poor persons, by and against administrators, fixing the damages for trespass in certain cases, &c.; which do not seriously affect the forms of action, but are as applicable to the new system as to the old. In the former class may be placed proceedings in partition; proceedings against corporations in courts of law; admeasurement of dower; proceedings for the collection of demands against ships and vessels; forcible entries and detainers; writ of nuisance, and actions of waste; all of which are either entirely creatures of the statute, by which the right and remedy are made inseparable, or are common law actions, so far modified by the statute as to be inconsistent with any other general form of remedy." Per Barculo, J., in Traver v. Traver, 1 Code Rep., 112. See also sections 108, 109, and supreme court rule, 90.

§ 472. Certain parts of revised and other statutes not repealed. Nothing in this act contained shall be taken to repeal section 23 of article 2 of title 5 of chapter 6, part 3d of the Revised Statutes, or to repeal an act to extend the exemption of household furniture and working tools from distress for rent and sale under execution, passed April 11, 1842.

§ 473. [391.] (Amended 1849). This act when to take effect. This act shall take effect on the first day of July, 1848; except that sections 22, 23, 24, and 25 shall take effect immediately.

The code, (passed 11th April, 1849), took effect twenty days after its passage. The last [this] section of the code should be considered as a portion of the original code, and applicable to such portions of the amended code as existed prior to April 11, 1849. But considering the amended code as a substitute for the original, to take effect on 1st of July, 1848, would be to give it a retrospective effect, contrary to the settled principles applicable to the construction of statutes. Gamble v. Beattie, 4 Pr. R., 41.

SUPPLEMENTARY ACT.

AN ACT

To amend an act entitled "An act to facilitate the determination of existing suits in the courts of this State."

Passed April 11, 1849.

The People of the State of New York, represented in Senate and Assembly, do enact as follows:

The act entitled "An act to facilitate the determination of existing suits in the courts of this State," passed April 12, 1848, is hereby amended so as to read as follows:

§ 1. (Amended 1849.) The act to simplify and abridge the practice, pleadings, and proceedings of the courts of this State, passed April 12, 1848, and amended at the present session of the Legislature, is herein designated as the "Code of Procedure."

TITLE I.

Provisions relating to the Courts in general.

CHAPTER 1. Sections of the Code of Procedure referred to and applied to existing suits.

2. Other provisions relating to existing suits.

CHAPTER I.

Sections of the Code of Procedure referred to and applied to existing suits.

§ 2. (Amended 1849.) The provisions of the Code of Proce dure, contained in the following sections thereof, are hereby applied, so far as the same are applicable, to future proceedings

in civil suits, whether at law or in equity, pending on the first day of July, 1848, as follows:

A writ of error was held to be a "suit" within this section. Grover v. Coon, 3 Pr. R., 341.

Where an appeal to a county court was perfected by the service of the necessary papers upon the justice, on the 3rd of June, 1848, held that it was a suit pending on the 1st of July, 1848. Teall v. Van Wyck, 10 Barb. S. C. R., 376. See note to section 8 of the code.

1. Sections seventy-two, one hundred and twenty-one, one hundred and sixty-nine to one hundred and seventy-six, both inclusive, three hundred and fifteen, and three hundred and eighty-eight, to proceedings in actions in the supreme court, in the county courts, in the superior court of the city of New York, in the court of common pleas for the city of New York, in the mayors' courts of the cities of Albany, Hudson, Troy, and Rochester, and in the recorders' courts in the cities of Buffalo and Utica.

2. Sections two hundred and ninety-two to three hundred and two, both inclusive, to executions on a judgment or decree in any of these courts, hereafter issued against any person, to the sheriff of the county where he resides, or if he reside out of the State, to the sheriff of the county where the record of judgment is filed or the decree enrolled; the word "judgment,” in these sections being taken to include a decree.

The words "hereafter issued" in this section mean after July 1, 1848. Dunham v. Nicholson, 2 Sand. S. C. R., 636.

3. Sections three hundred and twenty-three to three hundred and thirty-one, both inclusive, three hundred and thirtythree to three hundred and forty-seven, both inclusive, and three hundred and fifty-one to three hundred and seventy-one, both inclusive, to the review of judgments, decrees, and final orders from which no writ of error or appeal shall have been already taken, the word "judgment " being taken to include a decree, and “judgment roll" to include the record of judgment and enrollment of decree.

Farmers' Loan and Trust Co. v. Carroll, 4 Pr. R., 211; 1 Code Rep., 112.

4 Sections three hundred and ninety to three hundred and ninety-nine, both inclusive, four hundred and six to four hundred and fifteen, both inclusive, four hundred and seventeen,

and four hundred and eighteen, to proceedings in actions in all the courts of civil jurisdiction in the State.

5. Section four hundred and two, to non-enumerated motions in the courts mentioned in the first subdivision of this section.

See notes to sections 401, 402, 403, of the code.

This section does not authorize an appeal where the suit was terminated by judg. ment before the code took effect.

The "final orders" from which that section authorizes an appeal to this court, are, it seems, orders made in special proceedings, or upon summary application after judgment; and in the latter case the application, it seems, must concede the validity of the judgment, and seek relief upon matter arising subsequently. Dunlop v. Edwards, 3 Code Rep., 197.

A final decree, regularly entered (not enrolled), cannot be corrected on special motion; it must be by a re-hearing, or if enrolled, by bill of review. Picabia v. Everard, 4 Pr. R., 113, 2 Code Rep., 69.

CHAPTER II.

Other provisions relating to existing suits.*

§ 3. Suits referred by consent. Reference to take testimony.-Any suit in equity now pending in the supreme court, or which may be there pending before the first day of July next, or any issue therein, whether of fact or of law, or both, may be referred upon the written consent of the parties con cerned; and upon the like consent, a reference may be ordered to take testimony, or to report facts, or to execute any order or decree.

§ 4. Reference when directed by court.-Where the parties do not consent, as in the last section mentioned, the court may,

See note to Trial by Referees, p. 284.

A reference as to surplus moneys in a suit pending in the late court of chancery, is not a reference under this act. Rogers v. Mouncey, 1 Code Rep., 63. A reference to take testimony in an equity suit at issue upon the pleadings, cannot be directed under this act unless by consent. Flagg v. Munger, 2 Code Rep., 17; 3 Barb. S. C. R., 11.

On a reference to hear and determine, under code of 1848, an order to examine a co-defendant, was necessary. Roberts v. Thompson, 1 Code Rep, 113.

Where the examination of a long account is not necessarily involved, a reference will not be ordered. Sheldon v. Weeks, 7 Leg. Obs., 57.

What exceptions to a reference may be reviewed in the court of appeals. Wilson v. Allen, 2 Code Rep., 26.

What proceedings are to be had on reports of referees in suits pending July 1, 1848, and how such reports may be reviewed, see Mucklethwaite v. Weiser, 1 Code Rep., 61.

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